Greater New Orleans

In this file image taken from video and released by SITE Intelligence Group on Monday, Nov. 8, 2010, Anwar al-Awlaki speaks in a video message posted on radical websites. Yemen's Defense Ministry said in a statement Friday Sept. 30, 2011 the U.S.-born al-Qaida cleric Anwar al-Awlaki has been killed. The ministry provided no details in the statement Friday on one of its websites.
(Photo by SITE Intelligence Group, The Associated Press)

An individual's interest in avoiding erroneous deprivation of his life is 'uniquely compelling.'" - U.S. Department of Justice

What does citizenship in the United States mean? Most of us have no doubt thought about it the same way we do a charge card from American Express. According to that company's most famous tagline: Membership has its privileges. What privileges? They are manifold, but chief among them are the privileges of not getting disappeared by the government and not being executed without due process.

Given what that group did on Sept. 11, 2001, alone, there's not likely to be much sympathy for Americans who get blown up while fighting for that side. But the most attractive feature of law is its indifference to our feelings. Whether we care about the deceased is irrelevant. The question is whether the government is within its rights to take out an American citizen without benefit of trial or even arrest.

Though above I used the phrase "fighting for that side," the scariest part of the government's argument may be its assertion that the targeted American citizen need not have engaged this country or its interests in a fight. The government assumes that al-Qaida is always plotting an attack on either us or our interests; thus those affiliated with al-Qaida might be assumed to be actively plotting themselves. That makes them an imminent threat and, according to the memo, fair game.

According to the memo, "the condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." The memo then suggests that an "immediate future" definition means the 9/11 plot wouldn't have been considered imminent until the conspirators had finished their preparations for the attack; thus, it says, the definition of imminence must be broadened. Furthermore, it says, "The U.S. citizenship of a leader of al-Qaida or its associated forces ... does not give that person constitutional immunity from an attack."

In the above circumstances, what are the minimum requirements necessary for the killing of a U.S. citizen by the U.S. government to be considered lawful? The Justice Department doesn't say. Indeed, the memo explicitly says the Justice Department is not taking a position on that question. But isn't that question among the most important ones? If Americans are to be made comfortable with this kind of killing, shouldn't we at least be given clear guidelines on what a U.S. citizen has to do before the government sends in the drones?

In what can only be deemed a major case of understatement, the memo asserts, "An individual's interest in avoiding erroneous deprivation of his life is 'uniquely compelling.' " Exactly. That's why this memo is disturbing. There's no way the judiciary could know which deprivations of life were erroneous. No way we'd know either.